JUDGMENT
K.K. Lahoti, J.
1. Shri Naman Nagrath, Advocate for the appellant.
2. None for the respondent, in spite of service.
3. The short question involved in this appeal is whether the appeal filed before the lower appellate Court was competent or not, filed with certified copy of the decree, but without certified copy of the judgment. First appeal was dismissed on the ground that filing of certified copy of Judgment is mandatory and the appeal was incompetent.
4. This appeal was admitted on 23-11-1990 on the following substantial question of law :–
“Whether the lower appellate Court was right in dismissing the appeal as not properly constituted on the ground of not filing the certified copy of the judgment along with the memorandum of appeal, although certified copy of the decree was filed within limitation and the certified copy of the judgment was filed with an application for condonation of delay?”
5. Learned counsel for the appellant relies on Order 41, Rule 1, CPC.
“Form of appeal — What to accompany memorandum — (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the Judgment.
(Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment)”.
6. Learned counsel submits that appeal was dismissed by the lower appellate Court as the certified copy of the judgment could not be filed, but when lower appellate Court proceeded further in the appeal, then it will be presumed that the appellate Court has impliedly dispense with filing of certified copy of the judgment. In the circumstances appeal ought to have been decided on merits and the lower appellate Court erred in dismissing the appeal.
7. Filing of certified copy of the Judgment is mandatory or not, this question has been decided by the Apex Court in the case of Shakuntala Devi v. Kuntal Kumar, AIR 1969 SC 575. The Apex Court held in para 5:-
“5………… Ordinarily a decree means the formal expression of an adjudication in a suit. The decree follows the judgment and must be drawn up separately. But under Section 2(2), the term “decree” is deemed to include the determination of any question within Section 47. This inclusive definition of decree applies to Order 41, Rule 1. In some Courts, the decision under Section 47 is required to be formally drawn up as a decree and in that case the memorandum of appeal must be accompanied by a copy of the decree as well as the judgment………………..”
8. From the perusal of Order 41, Rule 1, CPC filing of certified copy is mandatory and only the appellate Court may dispense with the filing of certified copy as enumerated in the proviso, otherwise filing of certified copy of the judgment is mandatory. From the order passed by the Court below it appears that on 26-4-1986 when the appeal was filed, this objection was raised by the Court that the certified copy of the judgment was not filed. There is no order on record that the lower appellate Court dispensed with from filing certified copy of the judgment to the appellant, for which specific order is necessary. No inference can be drawn, merely the Court after taking cognizance of the default, if proceeded further. Filing of certified copy of the judgment and decree is mandatory as held by the Apex Court in the case of Shakuntala Devi v. Kuntal Kumar (supra).
9. In view of the aforesaid, the appellate Court has rightly held that the appeal was incompetent. I do not find any merit in this appeal, which is dismissed with no order as to costs.